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Application of the Laches Defense in the Employee Benefit Context VOL. 26, NO. 4 WINTER 2013 BENEFITS LAW JOURNAL Application of the Laches Defense in the Employee Benefit Context Barry L. Salkin aches, referred to by one commentator as the “golden girl” 1 2 L of equity jurisprudence, stems from the principle vigilantibus non dormientibus aequitas subvenit 3 that “equity aids the vigilant, not those who slumber on their rights, and is designed to promote diligence and prevent enforcement of stale claims.” 4 The doctrine of laches is rooted in public policy grounds that require, for the peace of society, the discouragement of stale claims. 5 Except perhaps in the Seventh Circuit as discussed more fully infra , 6 what a statute of limi- tations, a legislative construct, is to law, laches, a judicial doctrine, is to equity. 7 However, while a distinct defense, a laches determination is made with reference to the limitations period for the analogous action at law. 8 9 BACKGROUND AND GENERAL PRINCIPLES A leading treatise offers the following commentary on the doctrine of laches, which is part of the common law of trusts: 10 “[L]aches does not result from a mere lapse of time 11 but from the fact that, during the lapse of time, changed circumstances inequitably Barry L. Salkin is Of Counsel at Olshan Frome Wolosky, LLP. He is a fel- low of the American College of Employee Benefits Counsel, and is the author of numerous articles and book chapters dealing with employee benefits issues. Application of the Laches Defense in the Employee Benefi t Context work to the disadvantage or prejudice of another if the claim is now to be enforced. By his negligent delay,12 the plaintiff may have mis- led the defendant or others to acting on the assumption the plaintiff has abandoned his claim, or that he acquiesces in the situation, or changed circumstance may make it more difficult to defend against the claim.” 13 The applicability of the laches doctrine is based upon the cir- cumstances specific to each case. 14 It is an affirmative defense 15 that addresses an inexcusable delay on the part of the party bringing the claim 16 to the prejudice of the party asserting the defense.17 Because it is an affirmative defense, it must be raised in a “responsive pleading in short and plain statements,” 18 and if these conditions are not satis- fied the defense will be struck, 19 although generally with an opportu- nity to file an amended answer. As laches is an equitable doctrine, the decision to apply it is left to the discretion of the district court, 20 and a district court’s laches deter- mination is reviewed for abuse of discretion. 21 As an equitable doc- trine, it can be raised in the ERISA context as a defense, for example, in an action for an injunction, 22 for successor liability, 23 for construc- tive trust or equitable lien, 24 in an action for restitution, 25 for interest on delayed pension benefits, 26 for interpleader, 27 for equitable ref- ormation, 28 a claim for benefits, 29 or breach of fiduciary duty. 30 The relationship between laches and equitable tolling31 is less clear. It has been held that laches cannot be asserted with respect to a period during which the statute of limitations is tolled. 32 However, in Ortega Candelaria v. Orthobiologics, LLC , 33 the US Court of Appeals for the First Circuit, citing Veltri v. Building Service 32B-J Pension Fund 34 stat- ed that a defendant may rely upon “the equitable defense of laches and estoppel so as to avoid any surprise from the filing of untimely claims by plaintiffs who seek to rely upon equitable tolling as the result of defective notice.” 35 There are no bright-line rules for determining whether a laches defense will be successful. Rather, “laches is a question of degree.” 36 A court will “focus upon the length of the delay, the reasons there- fore, how the delay affected the defendant, and the overall fairness of permitting the assertion of the claim.” 37 The US Court of Appeals for the Seventh Circuit explained that: “The amount of delay and prejudice required for a finding of laches vary based on the amount of one versus the other—where a short period of time has elapsed since accrual of the claims, the amount of prejudice required is great, whereas a lengthy delay means less prejudice is required.” 38 The party invoking the defense of laches has the burden of estab- lishing its elements. 39 However, if the defendant establishes the delay, the plaintiff may bear the burden of explaining the delay in bringing BENEFITS LAW JOURNAL 2 VOL. 26, NO. 4, WINTER 2013 Application of the Laches Defense in the Employee Benefi t Context the suit. 40 If the delay is inexcusable, the defendant must demonstrate prejudice resulting from the delay. Also, as noted above, if a statutory limitation period that would bar legal relief has expired, then the defen- dant in an action for equitable relief enjoys the benefit of a presump- tion of inexcusable delay and prejudice. In that case, the burden shifts to the plaintiff to justify its delay and negate prejudice. 41 Procedurally, because a defendant to succeed on its laches claim must show that it suffered harm from the claimed undue delay, the issue cannot be dealt with on a motion to dismiss under Federal Rules of Civil Procedure (FRCP) 12(b)(6). 42 Although it is not per se imprudent to grant summary judgment on a claim of laches, 43 a motion for summary judgment will frequently be denied because it presents a factual question. 44 However, a party’s failure to satisfy its heavy burden45 on a motion for summary judgment does not render its laches defense invalid.46 The filing of class actions in employee benefits litigation is a topic onto itself, and the effects of a laches defense can only be briefly noted. In Chesmore, et al. v. Albanz Holdings, a Wisconsin district court 47 stated that: “The presence of potential affirmative defenses such as laches, estoppel, or unclean hands are rarely an obstacle to typicality … [the] mere fact that plaintiffs and other members of the subclass may have to address defenses unique to the subclass is hardly grounds for finding plaintiffs are inadequate representatives of the larger class, especially in light of the fact that nothing suggests that the affirmative defenses will swallow the case.” 48 There is however also authority for the proposition that the class action format is not suitable for the individualized treatment required for the exercise of equitable powers. 49 There is substantial authority for the proposition that so long as the statute of limitations has not run, the equitable defense of laches cannot be raised, at least if it is an action at law. 50 In United States v. Mack, decided before the merger of law and equity in 1938, the US Supreme Court stated that “laches within the term of the statute is no defense at law.” 51 More recently, in City of Oneida v. Oneida Indian Nation, the Supreme Court said in a footnote “that application of the equitable defense of laches in an action at law would be novel indeed.” 52 Most cases arising under ERISA concur with this analysis, 53 although some cases leave the door slightly ajar. 54 There is, however, authority to the contrary, primarily in the Seventh Circuit.55 One of the more interesting and frequently cited discussions of laches in the ERISA context is Judge Posner’s decision in Teamster and Employers Welfare Trust of Illinois v. Gorman Bros. Ready Mix, 56 an action by a multiemployer plan under ERISA Section 515 to collect delinquent contributions. He begins with the etymology of the word, noting that laches is the corruption of an Old French word (lasche), BENEFITS LAW JOURNAL 3 VOL. 26, NO. 4, WINTER 2013 Application of the Laches Defense in the Employee Benefi t Context meaning lax. He defines it as a culpable delay in suing. Traditionally, suits in equity were not subject to a statute of limitations but could be dismissed on the basis of unreasonable, 57 prejudicial delay by the plaintiff. “Laches cuts off the right to sue when the plaintiff has delayed ‘too long’ in suing. Too long for this purpose means that the plaintiff delayed inexcusably and the defendant was harmed by the delay.”58 Judge Posner then went on to explain that just as various tolling doc- trines can be used to extend a statute of limitations, laches can be used to contract it, 59 regardless of whether the suit is at law or in equity, because as with many equitable defenses, the defense of laches is equally available in suits at law.60 He was aware that some courts had invoked a presumption against the use of laches to shorten the statute of limitations,61 with one court making the presumption conclusive,62 on the ground that abridging a statutory period for suit by means of a judge-made doctrine is in tension with the separation of powers. 63 Judge Posner then set forth his disagreement with that analysis: When Congress fails to enact a statute of limitations, a court that borrows a state statute of limitations but permits it to be abridged by the doctrine of laches is not invading Congressional prerogatives … It is merely filling a legislative hole. 64 He then explained why laches is the “mirror image of equitable estop- pel,” 65 and why “laches and equitable estoppel are interchangeable:” 66 “The doctrine of equitable estoppel allows the plaintiff to extend the statute of limitations if the defendant has done something that makes the plaintiff reasonably believe that he had more time to sue.
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